Palestine

In January 2015, Palestine acceded to the Rome Statute and gave the ICC prosecutor jurisdiction over alleged crimes committed in the context of the Israel-Palestine conflict, in Gaza and East Jerusalem

Since 1948, the Israel-Palestine conflict has been characterized by well-documented widespread violations of international humanitarian law and grave breaches of the Geneva Conventions. Civil society long called for both Israel and Palestine to join the ICC to ensure accountability for those responsible.

While the Palestinian Authority expressed its desire to accept ICC jurisdiction, it was only following its upgrade to “non-member state” observer status at the United Nations that Palestine could finally accede to the Rome Statute on 2 January 2015, giving the ICC jurisdiction from that date forward. Several days later Palestine submitted a declaration under article 12(3) of the Rome Statute giving the ICC prosecutor jurisdiction over alleged grave crimes committed in the context of the Israel-Palestine conflict in Gaza and East-Jerusalem beginning June 2014. The prosecutor subsequently opened a preliminary examination to determine whether a full investigation is warranted. In June 2016, Palestine ratified both the Kampala amendments, becoming the 30th state to ratify the amendment on the crime of aggression.

Background

The Israeli-Palestinian conflict
The Israel-Palestine conflict is one of the longest running in modern history. Following the establishment of the state of Israel in 1948, violence erupted between Israeli armed forces and Palestinian armed groups. During the first and second intifadas in the late 1980s and early 2000s respectively, mass violations of international law occurred, with civilian casualties on both sides. Hundreds of thousands of Palestinians fled to neighboring countries, where many remain in refugee camps.
Gaza saw a recurrence of violence in April 2014 after the collapse of US-led peace negotiations. The death of two Palestinian teenagers and the subsequent abduction and death of three Israeli teenagers led to the launch of an Israeli military campaign into Gaza (Operation Protective Edge). The conflict caused a high number of civilian casualties. Between June and November 2014, over 2,000 Palestinians and 70 Israelis were reportedly killed, and more than 11,000 Palestinians and 1600 Israelis injured according to reports by the UN Refugee Agency and others.

ICC situation

ICC preliminary examination into the 2014 Gaza conflict

The ICC prosecutor opened a preliminary examination into the situation in Palestine on 16 January 2015, following an article 12(3) declaration lodged by the Palestinian government on 1 January of that same year. The ICC has jurisdiction over crimes committed on Palestinian territory or by Palestinian nationals as of 13 June 2015. The preliminary investigation is focused on alleged crimes committed by both Palestinian armed groups and Israeli defense forces during the 51-day Gaza conflict in 2014, as well as alleged crimes related to settlement activities in Gaza and the West Bank.

In June 2015, a commission of inquiry into the 2014 Gaza war—mandated by the UN Human Rights Council—presented a report detailing war crimes allegedly committed by both sides during the summer of 2014. Citing indiscriminate and disproportionate rocket fire into civilian populations by both Israel and Palestinian armed groups, the report encouraged local authorities to conduct criminal investigations to uphold accountability and deter future escalations of violence.

Cooperation

The government of Palestine has provided information to the ICC Office of the Prosecutor (OTP) on alleged crimes in relation to the 2014 Gaza conflict.

In July 2015, Israel opened a dialogue with the OTP in relation to the preliminary examination, publishing a report on factual and legal aspects of the 2014 conflict.

However, the Palestine preliminary examination has caused a worrying political backlash. Israel and the US have issued strong statements against the recognition of Palestine as a state as well as against the ICC, and both withheld aid to put pressure on Palestine.

Palestine’s responsibilities as an ICC member state include cooperating with the Court and its decisions, incorporating the Rome Statute into national legislation, and assisting the OTP with its preliminary examination. Israel should also engage positively with the Court. The international community—ICC member states in particular—must support the accountability process, whether through national courts or the ICC.

Civil society advocacy

Palestine’s quest for ICC membership

Palestine attended the Rome Conference in 1998 as an observer delegation and frequently expressed support for the Court as a tool for accountability, and in particular as a means to end impunity for international crimes allegedly committed in the Palestinian territories.

In April 2012, the OTP rejected a special ad hoc declaration by Palestine under Rome Statute article 12(3) in 2009 accepting the Court’s jurisdiction over acts committed on its territory since 1 July 2002. Such declarations are reserved for states only, as noted by the OTP when it refused to act as proxy for competent UN bodies or eventually the ICC’s Assembly of State Parties (ASP) to resolve legal issues relevant to Palestine’s statehood. The OTP thus deemed itself unable to proceed with a preliminary examination to determine whether a formal investigation would be warranted.

In November 2012, by UN General Assembly Resolution 67/19, Palestine’s status at the UN was upgraded from observer entity to non-member observer state, allowing it to join a number of international treaties. At the December 2014 session of the ASP, Palestine was for the first time invited to participate with non-state party observer status. The Palestinian Authority ratified the Rome Statute, as well as the Agreement on Privileges and Immunities, in January 2015.

Civil society activities

International and local civil society organizations have long advocated for accountability measures to address crimes committed within the context of the Israeli-Palestinian conflict.

Civil society urged Palestine and continues to urge Israel to join the ICC to stem well-documented mass violations of international law during the course of the decades-long conflict.

Since the opening of a preliminary examination in Palestine in 2015, Coalition members have continued documenting and raising awareness about human rights violations and submitting relevant information to the OTP, while working with both Palestine and Israel to ensure cooperation with the ICC.